Sunshine Week: Right-to-know ombudsman office opens – a user guide

By ANNMARIE TIMMINS

New Hampshire Bulletin

Published: 03-17-2023 12:43 PM

In his first several weeks, the state’s right-to-know ombudsman has received five complaints against state and local public agencies.

Ombudsman Thomas Kehr, who began in January, said the Milford and Newbury town offices and the state Department of Transportation are each the subject of one complaint. The Newmarket town office is the subject of two, he said.

The Legislature established the Office of the Right to Know Ombudsman as an alternative to a lawsuit for people dissatisfied with a public body’s response to a right-to-know request under RSA 91-A. A person cannot file a complaint with both the court and the ombudsman. Those who choose to file with the ombudsman’s office can appeal the ombudsman decision but not simultaneously pursue the complaint in court.

Gov. Chris Sununu nominated Kehr to the position, which pays $100,000, in December. In an interview with the Bulletin shortly after his nomination, Kehr said he’d handled right-to-know requests as a private attorney and during his 20 years with the Department of Administrative Services.

When asked why he wanted the position, Kehr said: “I think this is a worthwhile endeavor. I would like to apply laws set forth in (the bill establishing the position) and RSA 91-A.”

The ombudsman office’s website (visit sos.nh.gov and search “ombudsman”) does not provide a standard complaint form, offer guidance on what documents must or should be filed, or explain the ombudsman’s process for reaching a decision. Nor does the site say that people filing a complaint may request a waiver of the $25 filing fee.

Kehr told the Bulletin those interested in that information can find it in the state’s right-to-know law, under RSA 91-A:7, which the site links to.

“I assume that a person interested in the functions of this office would know that they may request a waiver of the fee in the same way that you or I have been made aware of this: that is, by reviewing the statute under which we are operating.”

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Here’s what you need to know.

Filing a complaint

Complaints must be written and signed, and include a $25 payment, though people can request that be waived for financial reasons. Kehr said he anticipates creating a complaint form as he develops rules for the office.

At least for now, complaints must be mailed or hand-delivered to the office: Office of the Right to Know Ombudsman, Room 313, State House Annex, 25 Capitol Street, Concord NH 03301.

Kehr said taking complaints electronically is not feasible at the moment because the office does not have the ability to securely accept payments online. He said offering online filing and payment would require more investigation. Kehr said his first priority is developing rules for the office, as required by law.

“I wish to avoid confusion and to promote the office’s internal efficiency of operations while a caseload of currently unknown magnitude takes shape,” Kehr said in an email. “As a general matter, as the office evolves, the (right-to-know ombudsman) finds it more organizationally workable to review incoming case materials in hard copy than in electronic format.”

What to include

The law requires you to provide the ombudsman the right-to-know request you submitted to a public office or officials and the response you received.

Beyond that, you may want to include a cover letter summarizing your correspondence or interactions with the agency or official and a timeline of events. The ombudsman may request additional information if needed.

Don’t expect an immediate response

The public body or agency has 20 days to acknowledge to the ombudsman that it has received the complaint and to file its response. The public agency or body must include why it denied the request, or delayed in providing the requested records or access to a meeting. The ombudsman may extend the deadline for “good cause.” The law does not specify how long or what would constitute good cause.

The ombudsman can require the public body or agency to provide governmental records; both parties to be interviewed; and the parties to attend a hearing if one is deemed necessary. The ombudsman must provide both parties a decision in writing. That must come within 30 days of the deadline given to the public body or agency to respond to the complaint. The ombudsman may extend that deadline by a “reasonable” amount of time for “good cause.”

The ombudsman will determine whether the public body or agency has violated the state’s right-to-know law and, if so, order the requested records to be provided or require a meeting be open to the public.

You can appeal

If you disagree with the ombudsman’s finding, you can appeal the decision to superior court, but you must do so within 30 days. The filing must include the ombudsman’s ruling. The court’s filing fee must be waived for citizens submitting appeals.

Understanding and using the right-to-know law

The state’s constitution and state Supreme Court rulings provide the public considerable access to government records and meetings.

Kehr has included a link to the Department of Justice’s 2015 overview of the right-to-know law that offers guidance on what is and isn’t considered a public document or meeting. (Go to doj.nh.gov and click “forms and publications” on the civil law bureau’s page.)

The site does not include Right to Know New Hampshire (righttoknownh.wordpress.com), but it should be on your list too. The nonprofit provides free guidance on filing a right-to-know request, trainings on using the law, and court rulings that protect the public’s right to governmental records and meetings.

“The ‘resources’ section of the evolving web page is not intended to be a general forum for the posting of varied information which may be of value to those interested in the application of RSA 91-A,” Kehr said in an email. “Organizations other than this office are, of course, free to provide information of their own via forums of their own.”

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